The Apex Court's Last Word on Article 370 and Kashmir's Constitutional Quandary

We delve into the nuances of the Supreme Court's judgment, specifically the constitutionality aspect.

In this article, we delve into the nuances of the apex court's judgment, focusing specifically on the constitutionality of the Union’s approach to abrogate Article 370, directions to restore statehood to J&K, and the establishment of a Truth and Reconciliation Commission in the near future.

(Photo: Kamran Akhter/The Quint)

On 11 December 2023, the Chief Justice of India, Dr DY Chandrachud pronounced the judgment of the constitutional bench in Re Article 370 of the Constitution - which unanimously upheld the decision of the Union Government to revoke the special status granted to the State of Jammu and Kashmir (J&K) under Article 370 of the Constitution, taken in 2019.

The decision, which came on the back of 16 days of hearings before the Supreme Court (SC), is a seminal moment in the history of a region that has seen its fair share of violence and turmoil in the recent past.

In this article, we delve into the nuances of the SC's judgment - focusing specifically on the discussion in respect of the constitutionality of the Union’s approach to abrogate Article 370, directions to restore statehood to J&K, and the establishment of a Truth and Reconciliation Commission in the near future.  

Historical and Political Background 

J&K has, in the recent past, witnessed a tumultuous period rife with conflict and human rights issues. The Union Government’s decision to revoke the special status of J&K in 2019 was therefore one that was met with mixed responses - given the complex history of the region and its political importance.  

The accession of J&K to the Republic of India occurred under the Instrument of Accession dated 26 October 1947.

While the Instrument of Accession conservatively attempted to retain the sovereign power of the Maharaja, the proclamation issued by the heir to the Maharaja throne - Yuvraj Karan Singh in 1949, unconditionally adopted the Indian Constitution as the governing almanac of the region (which is cited by the Chief Justice in the judgment as well). 

While J&K enjoyed a special (albeit temporarily so) status under the Indian Constitution as a result of Article 370, it was the introduction of Article 35A to the Constitution in 1954 which provided the legislative assembly of J&K with the power to make special laws and provide privileges to permanent residents of the State, especially in respect of property, ownership inter alia. 

2019: A change in the Status Quo 

The abrogation of Article 370 of the Constitution was undertaken by the Union through two Constitutional Orders (“COs”) - CO 272 and CO 273 - passed by the Union Parliament and the President respectively.

Under CO 272, the Union amended Article 367 of the Constitution by replacing “Constituent Assembly” in Article 370 with “Legislative Assembly” - claiming that this method was kosher as per Article 370(1)(d), which allowed the application of the provisions of the Constitution to J&K.

Under CO 273, the President exercised his powers under Article 370(3) to cease the operation of Article 370 altogether, and to enable the provisions of the Constitution to apply to the State of J&K, as they apply to the rest of India.  

The Union also enacted the J&K Reorganisation Act of 2019, which reorganised the State of K&K into two Union Territories - Ladakh and Jammu & Kashmir. The Petitioners before the SC challenged the legitimacy of the Union’s actions to effect the reorganisation of J&K, and to abrogate Article 370 of the Constitution.  

The Verdict: Unanimously Upholding the Union’s actions 

The 5-judge bench of the SC, led by Chief Justice DY Chandrachud, delivered a unanimous decision in Re Article 370 of the Constitution – with Chief Justice Chandrachud penning a collective decision on behalf of himself, Justice Gavai and Justice Surya Kant.

Justice Kaul and Justice Khanna delivered separate judgments, concurring with the conclusions of the Chief Justice.

On the Nature of Jammu and Kashmir’s sovereignty 

The first questions which the 5-judge bench had to grapple with were whether (a) Article 370 was merely a temporary provision, or whether it had gained permanence with the dissolution of the J&K Constituent Assembly, and (b) J&K was independently sovereign as a State, and had a separate special status which merited a differentiated protection under Article 370. 

On (a), the SC held that Article 370 was indeed temporary in nature, which was captured by its text, as well as the historical background in which it came into existence. The SC observed that while the circumstances which prevailed at the time of its inception warranted a limited application of the Indian Constitution to the region, such a power could not be permanent – even after the dissolution of the Constituent Assembly.

This was also because the recommendations of the Constituent Assembly of J&K had no bearing on the President’s power to abrogate Article 370 of the Constitution – who, under sub-clause(3), had the power to abrogate the provision completely, and lead to the application of the Indian Constitution as a whole to the State of J&K.  

On (b), the SC referred to the proclamation by Yuvraj Karan Singh, which in its view showcased the ultimate secession of J&K to the Indian Union. The SC emphasised that the complete integration of the State of J&K into the Union was always the intention, even during the time of the drafting of the provision, since the Constitution did not envisage any heightened sovereignty to the State of J&K, distinct from the other states in the country.

On the Constitutionality of the COs Passed by the Union and the President 

While the SC upheld the Union’s action to abrogate Article 370 of the Constitution, it did not give the green light to the complete approach which the Union adopted in bringing the abrogation about.  

First, the SC observed that the circuitous route adopted by the Union to amend Article 367 was unconstitutional, and impermissible, since it sought to bring about a change to Article 370 – which necessarily needed the ‘concurrence’ of the State Government. Since the effect of the amendment to Article 367 (the interpretations clause) was to indirectly amend Article 370 itself, the SC held that such an action could not pass constitutional muster, and held that it had to be declared invalid. 

However, the SC recognised that the President’s power to declare that all provisions of the Constitution applied to the State of J&K under 370(1)(d) remained intact – which, if exercised, would have the effect of abrogating Article 370 itself, as per Article 370(3).

Therefore, the parts of CO 272 which dealt with the President’s powers under Article 370(1)(d) were declared as valid and constitutional by the SC (The Doctrine of Severability becomes of interest here, which allows a Constitutional Court, like the SC, to declare parts of any governmental action void and unconstitutional, while upholding the remaining unaffected portions).  

On CO 273, the SC held that its inquiry into the exercise of the President’s powers under Article 370(3) was extremely limited since (1) the President’s power is essentially an executive policy decision – which is based on an assessment of whether the special circumstances which warranted the inclusion of Article 370 have ceased to exist, and (2) the SC could only exercise its power of judicial review if the action of the President was mala fide.  

The SC held that the exercise of the powers under Article 370(3) of the Constitution by the President did not suffer from any mala fides, and with the coming into effect of CO 273, the whole of the Indian Constitution became applicable to J&K in the same manner as it did for the other States in India.  

On the J&K Reorganisation Act, and the Establishment of the Truth and Reconciliation Commission 

One of the main qualms which the Petitioners brought to the Court was the loss of J&K’s statehood – which they contended was an integral part of its ‘character’. According to the Petitioners, the reorganisation of J&K into the two Union Territories under the Reorganisation Act was a concerted attempt to deprive the region of its ‘character’, and impose governmental control.  

However, those concerns were allayed (albeit temporarily) by the SC in its judgment, where it cited the Solicitor General’s submission during the final hearings that the Union intended to restore statehood to Jammu and Kashmir in due course. The SC also acted proactively in observing that since elections to the J&K legislative assembly had not taken place for a long period, the Election Commission should ensure that such elections take place before the end of September 2024 – setting a specific timeline for the ECI to comply with.

Lastly, the SC also recommended the establishment of a Truth and Reconciliation Commission to look into the human rights violations that have occurred in the region in the recent past – especially with the increase in violence outbreaks during clashes between internal militant groups and the armed forces deployed in the region.  

The Supreme Court’s verdict signals a tell-tale sign, that the era of constitutional uncertainty surrounding J&K may well have been put to an end for good. And from the reasoning adopted by the apex court to support its decision, the verdict seems to have done so on a solid foundation. 

(Tanvi Dubey [[e-mail]] is an independent practitioner with a diverse practice ranging from civil, commercial, and constitutional disputes to service matters before the Supreme Court and other judicial fora in Delhi. Sumit Chatterjee [[e-mail]] is a civil and commercial dispute resolution lawyer at Arista Chambers, practicing before the Karnataka High Court, trial courts and a wide array of tribunals in Bangalore. The authors would like to thank Ms Tanvi Jain and Ms Gaurika Grover, students of law at Christ University and Jindal Global Law School respectively, for their helpful research assistance.)

(This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)